Background

In his Note sur la Création d’une Institution Judiciaire Internationale propre à prévenir et à réprimer les Infractions à la Convention de Genève, Gustave Moynier proposed what was essentially the first serious draft of an international convention establishing an international criminal tribunal. This tribunal would have jurisdiction to hear criminal cases involving breaches of the Geneva Convention.

The proposal followed a fundamental change of heart on the part of the author. For much of his life, Moynier was opposed to the idea of granting jurisdiction over international criminal matters to an international institution. In his view, the pressure of public opinion and the public indignation following a breach of the Geneva Convention would act as a deterrent strong enough to discourage future infractions. Further, Moynier was hopeful that the member states of the Convention would adapt their internal criminal legislation in order to prosecute possible violations of the Convention on an internal level. Unfortunately, neither of these ideas withstood the test of time. On the occasion of the Franco-Prussian war (1870 – 1871), Moynier had to acknowledge the fact that some voices of public opinion not only failed to condemn the atrocities committed but actively acted as an inflammatory agent. Hence, he realized the need for an independent institution safeguarding the Geneva Convention; and his proposal discussed below was to serve as food for thought in this regard.

Moynier’s proposal was widely received, yet also widely criticized at the time. While some had practical reservations toward the tribunal, such as a lack of ‘international police’ to enforce the judgments, others questioned the general approach to the problem, preferring instead other measures, such as a more traditional bilateral arbitration.

Summary

In the Draft Convention of the Note, Moynier mapped out the broad strokes of an international tribunal designed to prevent and sanction infractions against the Geneva Convention. It was to be an arbitral tribunal headed by five adjudicators. In case of war between member states, the president of Switzerland would choose three different member states of the Convention, each of which would have the power to appoint one adjudicator. The remaining two adjudicators would be chosen by the belligerent members themselves (Art. 1 and 2). The five adjudicators would then decide on the seat of the tribunal as well as on the internal organization and procedures applied, except for the principle of adversarial inquiry of facts, which is established in the Draft Convention itself (Art. 3 and Art. 4§1). The tribunal would have mandatory jurisdiction over breaches of the Geneva Convention involving foreigners. However, it would only have the power to investigate breaches subject to a specific complaint by an “interested government” (Art. 4). The tribunal would render a verdict on individual cases, assess penalties in accordance with rules “complementary” to the Draft Convention (Art. 5) and award compensation if requested in the complaint (Art. 7). The judgments would be communicated to the belligerent members for enforcement (Art. 6) as well as all other member states of the Convention in order to be published (Art. 8). Finally, all costs incurred by the tribunal would be borne by the belligerent members (Art. 9).

From a modern point of view, it is noteworthy that Moynier recognized the need for personal and direct criminal sanctions against perpetrators, as well as monetary penalties against the belligerent state. He also realized the deterring function of making judgments public in all the member states. On the other hand, even though the proposal is not very specific as it lacks precise elements of crime for example, it can be argued that the jurisdiction and the powers given to the tribunal are rather narrow. For instance, the tribunal would only hear cases arising during a war between states but not cases arising out of an internal conflict, even though, at the time, the memory of the US civil war and the atrocities committed were still fresh. Also, the complaints need to be submitted by an ‘interested government’. Arguably, this was intended to limit considerably the number of member states, which had a right to lodge a complaint. However, nowadays, the essential norms of international humanitarian law are considered to be erga omnes obligations, and hence, in case of a breach, every state should be entitled to lodge a complaint. Similarly, procedural issues, including the rights of the defendant, are largely left to the discretion of the adjudicators, and thus potentially subject to arbitrariness.